SCOTUS: 1st Amendment Protects Americans From Gov’t Reprisal For Engaging In Personal Religious Observance

Did The Court Just Replace The "Lemon Test"?

Held: The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression….

…Here, no one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving “thanks through prayer” briefly “on the playing field” at the conclusion of each game he coaches. App. 168, 171. The contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy’s brief prayer, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. Prohibiting a religious practice was thus the District’s unquestioned “object.” The District explained that it could not allow an on-duty employee to engage in religious conduct even though it allowed other on-duty employees to engage in personal secular conduct. The District’s performance evaluation after the 2015 football season also advised against rehiring Mr. Kennedy on the ground that he failed to supervise student-athletes after games, but any sort of postgame supervisory requirement was not applied in an evenhanded way. Pp. 12–14. The District thus conceded that its policies were neither neutral nor generally applicable.

(2) Mr. Kennedy also discharged his burden under the Free Speech Clause. The First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506. But teachers and coaches are also government employees paid in part to speak on the government’s behalf and to convey its intended messages. To account for the complexity associated with the interplay between free speech rights and government employment, this Court’s decisions in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Garcetti v. Ceballos, 547 U. S. 410, and related cases suggest proceeding in two steps. The first step involves a threshold inquiry into the nature of the speech at issue. When an employee “speaks as a citizen addressing a matter of public concern,” the Court’s cases indicate that the First Amendment may be implicated and courts should proceed to a second step. Id., at 423. At this step, courts should engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Ibid. At the first step of the Pickering–Garcetti inquiry, the parties’ disagreement centers on one question: Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?

When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. Lane v. Franks, 573 U. S. 228, 240. He did not speak pursuant to government policy and was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee. Garcetti, 547 U. S., at 421. The timing and circumstances of Mr. Kennedy’s prayers—during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities—confirms that Mr. Kennedy did not offer his prayers while acting within the scope of his duties as a coach. It is not dispositive that Coach Kennedy served as a role model and remained on duty after games. To hold otherwise is to posit an “excessively broad job descriptio[n]” by treating everything teachers and coaches say in the workplace as government speech subject to government control. Garcetti, 547 U. S., at 424. That Mr. Kennedy used available time to pray does not transform his speech into government speech. Acknowledging that Mr. Kennedy’s prayers represented his own private speech means he has carried his threshold burden. Under the Pickering–Garcetti framework, a second step remains where the government may seek to prove that its interests as employer outweigh even an employee’s private speech on a matter of public concern. See Lane, 573 U. S., at 242. Pp. 15–19.

(3) Whether one views the case through the lens of the Free Exercise or Free Speech Clause, at this point the burden shifts to the District. Under the Free Exercise Clause, a government entity normally must satisfy at least “strict scrutiny,” showing that its restrictions on the plaintiff’s protected rights serve a compelling interest and are narrowly tailored to that end. See Lukumi, 508 U. S., at 533. A similar standard generally obtains under the Free Speech Clause. See Reed v. Town of Gilbert, 576 U. S. 155, 171. The District asks the Court to apply to Mr. Kennedy’s claims the more lenient second-step Pickering–Garcetti test, or alternatively, intermediate scrutiny. The Court concludes, however, that the District cannot sustain its burden under any standard. Pp. 19–30.

…In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’ ” Town of Greece v. Galloway, 572 U. S. 565, 576. A natural reading of the First Amendment suggests that the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others. Everson v. Board of Ed. of Ewing, 330 U. S. 1, 13, 15. An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “‘exception’” within the “Court’s Establishment Clause jurisprudence.” Town of Greece, at 575. The District and the Ninth Circuit erred by failing to heed this guidance. Pp. 19–30.

…(c) Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims. Pp. 31–32.

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GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and BARRETT, JJ., joined, and in which KAVANAUGH, J., joined, except as to Part III–B. THOMAS, J., and ALITO, J., filed concurring opinions. | “Kennedy v. Bremerton School District” | June 27, 2022


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  1. I’m trying to figure out what’s going on. First, there’s the overturn of Roe, Wade, Casey, then there’s this right to pray in public settings. I realize that there is a majority of conservative justices on the bench at SCOTUS now, but these rulings are most unexpected nonetheless. Then, Justice Thomas made a remark after the Roe, et. al. decision that SSM needs to be revisited as well. While these are welcome decisions (it’s about time!) the down side is that they are inciting Leftist backlash all across the country. It’s plain that the nation is divided, which was amplified during the Trump administration. And it’s not so much just blue states vs. red states. When one takes the next step and examines voting results on a county by county basis it’s plain that it’s large metropolitan areas (blue) versus the rest of a state’s small towns and rural areas (red). Is a different kind of civil war in the near future?

    Not only that, but when I view protest scenes over the Roe decision I see a sea of young millennials and probably zoomers. It’s clear that these young folks have been thoroughly brain washed by their educational institutions, but would they understand this if it were to be presented to them and the true roots behind the legalization of abortions and Planned Parenthood? Never mind; rhetorical question. They would just disbelieve it and continue on.

    • This morning graffiti was painted between the entry doors of a prominent independent protestant congregation located in a Western suburb of Chicago. It read, “abortion is blessed” and “abortion is godly”. As expected, it won’t be just the Roman Catholic congregations who can expect to undergo backlash as a result of the SCOTUS decision on Roe, Wade, & Casey.

  2. It is encouraging to see that “free exercise of religion” means “free exercise of religion.”

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